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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wheatley v. Royal British Legion [2002] UKEAT 1337_01_1305 (13 May 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1337_01_1305.html Cite as: [2002] UKEAT 1337_01_1305, [2002] UKEAT 1337_1_1305

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


THE HONOURABLE MR JUSTICE WALL

1. This is the Preliminary Hearing of Miss Wheatley's appeal against the decision of the Employment Tribunal held at London South on 19 July 2001. Miss Wheatley does not appear this morning. Unfortunately she also did not appear before the Tribunal. It is apparent from the Extended Reasons that she had given an explanation as to why she had not appeared. That explanation was not acceptable to the Tribunal, which proceeded to hear the case in her absence. The Tribunal's decision was that the effective date of her dismissal was 13 February 2001 and that her dismissal on that date did not give rise to a breach of contract. The Tribunal also found that the provisions in the Respondent's handbook and disciplinary procedure reserving a discretion as to whether they would apply in the first twelve months of employment did not amount to an unfair contractual term and, finally, that the Tribunal had no jurisdiction to entertain a complaint of unfair dismissal.
2. The position in a nutshell is that the Applicant, Miss Wheatley, was employed by the Respondent as a Disability Officer from 28 February 2000. On 13 February 2001 the Respondent wrote to her terminating her employment with effect from that date and making a payment of one month's pay in lieu of the Applicant's entitlement to notice. If the true date of dismissal was 13 February 2001 that would result in the Applicant not being able to satisfy the requirement of one year's continuous service such as to entitle her to bring a claim of unfair dismissal. That ultimately was the decision of the Tribunal.
3. Miss Wheatley has put in a detailed Notice of Appeal which seeks to argue that the Respondent's disciplinary policy covered all employees and the handbook said it would be applied uniformly. She submits that, in effect, her dismissal within the twelve month period was a breach of her contract of employment and unfair as it deprived her of the opportunity of making an application under the Act.
4. Indeed, if it was the intention of the Respondent to avoid the provisions of the Act, we take the view that that might be an arguable ground of appeal. The difficulty we have is that Miss Wheatley has not appeared this morning. Nor do we have the relevant provisions of the handbook upon which she relies and to which she makes reference in her statement. We do not know in detail why she is not here save that she has left a message to the effect that she is willing to abide by the decision of the Tribunal. However, on the slightly unusual facts in this case we feel reluctant to proceed without either an explicit statement from her that she is not pursuing her appeal or her attendance to argue it.
5. In these unusual circumstances, since this is a Preliminary Hearing, we have decided that the proper course is to adjourn the matter to enable a transcript of this short judgment to be prepared and to be sent to Miss Wheatley under cover of a letter from the Registrar asking her about her intentions in relation to the appeal. The choice which should be offered to her is either to prosecute the appeal in person, or to withdraw it. That is the choice which should be put to her. If she is to pursue it, she should also make available to us the documents to which she refers in her statement which will include her contract and the employer's terms in the handbook as to disciplinary procedures and dismissal. In those circumstances this appeal will be adjourned.